Haines v. Patterson — 33 N.Y.S. 814

Majority

p. 814

HAINES et al. v. PATTERSON et al. PATTERSON v. McCUNN et al. GANO v. SAME.

(Supreme 'Court, General Term, First Department.

May 17, 1895.)

Headnote

Hosts—Collection—Laches.

Parties who have delayed 15 years before attempting to collect their costs will not be permitted to move to amend a decree in an action to which they are not parties, for the purpose of effecting such collection.

Appeal from special term, New York county.

Actions by Martha Haines and another against William A. Patterson and others; by Elizabeth Patterson against. Jane W. McCunn and others; and by James M. Gano, as executor, against Thomas McCunn, as-executor, and others. From an order denying a motion to amend an interlocutory judgment, plaintiffs appeal.

Affirmed.

The cause first above entitled was commenced December 7, 1892, its object .being to partition certain real estate. On December 5, 1894, an interlocutory Judgment therein was entered by which the rights of the owners of the prop•erty involved in the action and those of the various incumbrancers thereon were determined. On January 31, 1895, Shipman, Larocque & Choate, Esqs., .■acting for themselves and as attorneys for James M. Gano, executor, etc., procured an order, entitled in the two actions of Patterson v. McCunn and Gano v. McCunn, .to show cause why the judgments in said actions (entered, respectively, November 1, 1881, and July 1, 1880, nunc pro tunc as of January 10, 1877) should not !be amended, and why leave to issue execution for costs in said action should not he granted. Before the hearing of the motion on said order, the same parties gave notice of motion for resettlement and .amendment of the said interlocutory judgment in Haines v. Patterson, so .that said judgment provide for the costs in the two other causes, with interest from January .7, 187,7.; and both motions .came on to be heard together.

p. 815

Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.

A. Davidson, for appellants.

Christopher Fine and Chas. Fox, for respondents.

The parties having delayed some 15 years before making any attempt to collect their costs, we think it is too late now for them to move to amend a decree in an action in which they are not parties for the purpose of effecting such collection. The order appealed from should be affirmed, with $10 costs and disbursements.